Advocates of the freedom of information (FOI) bill are calling on the House leadership to ensure that the measure is voted on in the next hearing by allowing the procedures to extend beyond the 4 p.m. deadline, if necessary.

This was after last Tuesday’s hearing of the public information committee was derailed by technical issues. Eastern Samar Rep. Ben Evardone, the committee chairman, cut short the proceedings for lack of time as the House plenary session was about to begin.

Ifugao Rep. Teddy Baguilat said advocates of the measure must see to it that enough lawmakers attend the next committee hearing so that they can oppose any dilatory tactics and ensure that the bill is finally voted on.

“We got blindsided in the last hearing. It’s inexcusable if it happens again in the next hearing… We must force the vote next time,” Baguilat said.

Party-list member Teodoro Casiño (Bayan Muna) said House leaders should make up their minds if they want the bill or not and prepare for the hearing, like getting the permission from the rules committee for an extension.

Another Bayan Muna member, Neri Colmenares, warned that if the next hearing turns out to be a farce, those in support of the bill may have to resort to drastic action.

House minority bloc to support FOI bill with ‘right to reply’ provision

By Karen Boncocan

INQUIRER.net

7:53 am | Thursday, November 15th, 2012

MANILA, Philippines — The House minority bloc will only support a Freedom of Information Bill that has the right of reply provision.

This was according to House minority leader Danilo Suarez who said in an interview with reporters on Wednesday that although their members were divided on the FOI Bill, what they agreed on was the need for a right of reply provision.

On the proposal to enact the constitutional promise of freedom of information, the calculated incompetence of the House committee on public information has led to the outcome it wanted all along: deliberate inaction. The committee’s failure on Tuesday to even put the Freedom of Information bill to a vote, after an agonizing procedural detour, means there is very little chance that it will become law under the 15th Congress.

One FOI advocate, Deputy Speaker Lorenzo Tañada III, thinks there may still be time within the month for the committee to redeem itself and report out the bill to the plenary. Most other advocates, however, have looked into the eyes of the House leadership, and read there the bill’s obituary.

The statement issued by the Right to Know Right Now Coalition used the language of crime to describe Tuesday’s legislative maneuver.

“Battery, assault and murder—this was what happened to the FOI bill today at the hearing of the Committee on Public Information of the House of Representatives. The FOI bill is dead in the 15th Congress.”

Forceful, dramatic language, but entirely in the right. What happened the other day (or, rather, what did not happen) amounts to a crime against the people.

It is a crime in which the Aquino administration and the Liberal Party, which came to power in 2010, are complicit. Earlier this year, the administration proposed a substitute FOI bill, which its communication group described as “an integral element of the Aquino Good Governance and Anti-Corruption Plan of 2012-2016, which the President has recently approved subject to further refinements. This plan contains reforms and initiatives that pursue greater transparency, accountability and citizen participation in governance.”

We are aware, of course, that not every administration measure becomes law, and that even priority bills can fail to pass through the legislative mill. But the FOI bill is different, for two distinctive reasons.

First, President Aquino himself campaigned for the presidency on the passage of the FOI bill, among other promises, precisely because he saw it as an integral part of the initiative against corruption. And second, the administration coalition that runs the House can function with enviable efficiency when it wants to; however, when the conduct of the committee on public information can be accurately described as a bitter comedy of procedural errors—failing to find a meeting room in the sprawling Batasan complex to host a committee hearing, for example, or using up the time in a rare committee hearing to discuss the minutiae of procedure that had already been discussed and resolved in a previous meeting—then the truth becomes obvious: The House leadership, and the administration it works closely with, do not want the FOI cause to advance.

The cause of the latest delay in the already extended legislative struggle over the FOI bill betrays the real issue at stake.

For some inexplicable reason, committee chair Rep. Ben Evardone (incredibly, a former journalist) allowed Rep. Rodolfo Antonino on Tuesday to complain interminably about the supposed failure of the Technical Working Group to consider Antonino’s right of reply bill. This was absurd on many levels. The procedural issue had already been taken up. The urgency surrounding the FOI bill could not be denied. Not least, the right of reply measure had nothing substantive in common with the FOI bill. The very concept of right of reply is philosophically antagonistic to freedom of information; it is a patently unconstitutional attempt to control the editorial content of the news media. That it managed to suck up all the remaining oxygen in Evardone’s rare, ridiculous hearing is telling.

It tells us that the real issue is not journalistic responsibility in the use of public records, or even the government transparency that FOI seeks to put in place, but political power. Or to be more precise: the power of the political class.

The right-of-reply feint is the political class’ attempt to level the playing field, as the politicians understand it, in their favor: They seek to exchange the privileges they would lose under an enacted FOI with the privileges they think they will enjoy once politicians get to dictate editorial content. Battery, assault—and murder.

Had not the debate on the Freedom of Information bill been aborted last Tuesday, it might have taken up the issue of “right of reply.” Actually, this is not the first time that the right of reply has reached Congress. In 2009 a bill on the subject sought preferential treatment. Essentially the bill said that “all persons who are accused directly or indirectly of any crime or offense or are criticized by innuendo, suggestion or rumor for any lapse in behavior in public or private life shall have the right to reply to the charges published in newspapers and other publications or to criticisms aired over radio, television, website or through any electrical device.” It did not become law and no case went to court.

Something analogous, however, did reach the Philippine courts. Pursuant to its constitutional power to regulate media during election periods, the Commission on Elections passed a resolution regarding free time or space in media for candidates. The resolution was not a masterpiece of clarity so that it was not clear whether it was meant to compel media to make time or space available or whether the Comelec was merely making a recommendation to media. At any rate, when the Supreme Court took it up in 1995, it said that, if understood as mandatory, it would amount to taking of private property without just compensation.

The Court could also have taken it up as a speech issue because freedom of speech means both the right to speak and not to speak. Political ads, after all, are speech. But the Court chose to approach it as an illicit act of property hijacking.

Should the right of reply become part of the Freedom of Information bill or of the cybercrime law, it will be a good issue to take up as speech and not just as illicit taking of property. And since we follow the American tradition on speech jurisprudence, we will be looking for American cases on the subject. Fortunately there is one that is ready at hand that takes up both sides of the debate.

Miami Herald v. Tornillo (1974) involved a Florida law on the right of reply. Candidate Tornillo, relying on the Florida law, demanded that the Miami Herald print his reply to the editorial comments of the Herald. But the Florida law was declared unconstitutional.

It is interesting that the US Supreme Court took pains to summarize the arguments brought up in favor of a right of reply. They are worth recalling if only to see if they find resonance in our condition.

Essentially the argument in favor of a right of reply rested on the historical premise that “at the time the First Amendment to the Constitution was ratified in 1791 as part of [the] Bill of Rights the press was broadly representative of the people it was serving and collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive … A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.”

However, the argument ran, because of changed circumstances newspapers had ceased to be “a true marketplace of ideas.” “The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.”

Proponents also sought support from certain dicta of the US Supreme Court suggesting that the guarantee of a free press also imposed obligations on owners of newspapers. The First Amendment, they quoted, “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Cited also was the dictum that spoke of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.”

In the end, however, the Court was deterred by problems of implementation. “However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.”

The Court also said: “The power of a privately owned newspaper to advance its own political, social and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers….The clear implication has been that any such compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

I might also add that a right of reply in the context of current Philippine society today will not really add anything to what people who pay attention to media already know. Newspaper readers, radio listeners and television viewers already are bombarded with assertive reporting, some straight and others biased, and opposing opinions of columnists. The strong temptation in fact is to ignore them or sometimes to go over media, just for fun, as a vacuum cleaner would—only to look for dirt.

As expected, the Supreme Court resolution (dated Oct. 23, 2012, but known publicly only last week) “disallowing the live media broadcast” of the Maguindanao massacre trials and allowing only the “audio visual recording and streaming of the video coverage … both (1) for documentary purposes and (2) for transmittal to specified viewing areas: (i) outside the courtroom, within the Camp Bagong Diwa premises; and (ii) selected trial courts in Maguindanao, Koronadal, South Cotabato, and General Santos City where relatives of the accused and the victims reside” generated a maelstrom of controversy.

Earlier ruling modified. To be precise, the resolution modified an earlier one issued on June 14, 2011, which allowed “pro hac vice” the live TV and radio broadcast of this “trial of the decade,” subject to strict guidelines, among them:

• “A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid highlighting or downplaying incidents in the proceedings…

• “The broadcasting of the proceedings for a particular day must be continuous and in its entirety … [with] no commercial break or any other gap…

• “To avoid overriding or superimposing the audio output from the ongoing proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations or scenes depicted therein as may be necessary to explain them at the start and end of the scene…”

These guidelines were issued pro hac vice, meaning for “this instance only,” and will not apply as a precedent to future cases, because of the unusual circumstances in the Maguindanao massacre in which there are 57 families of victims, 197 accused, 20 sets of lawyers, 200 witnesses for the prosecution, and another 200 for the defense. Since they could not be accommodated in the courtroom, the Supreme Court allowed live broadcast to enable them to monitor the case.

Aquino and Estrada cases. Historically, the Supreme Court had always disallowed live TV and radio coverage of trials. On Oct. 22, 1991, in the libel case filed by President Cory Aquino against Luis Beltran, the Court held:

“Considering the prejudice it poses to the defendant’s rights to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed…”

Likewise, in the plunder trial of President Joseph Estrada, the high court a decade later, on June 29, 2001, ruled via an 8-6 vote that as between the constitutional rights of the accused to due process and the orderly administration of justice on the one hand, and the freedom of the press and right to public information of our people on the other, the balance should be weighed in favor of the accused.

However, in a subsequent resolution issued on Sept. 13, 2001, the Court in the same Estrada case “provided a glimmer of hope” when it ordered the installation of cameras inside the courtroom for “documentation purposes.” This resolution was obviously used as basis in allowing the pro hac vice live broadcast on June 14, 2011.

Mistrial and exclusion. However, the Court now modified this pro hac vice ruling, fearing (1) that the accused could be acquitted on the ground of “mistrial” arising from the public pressure and media hype, and (2) the disqualification of many prosecution witnesses who have not been properly excluded from listening to earlier witnesses.

The Court reverted to the Cory Aquino libel ruling that “Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judge’s responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense.”

The Court became extra careful in avoiding a mistrial that may ensue from the trial court’s witting or unwitting deprivation of the accused’s constitutional rights to due process and a fair trial, as a consequence of which they could be acquitted on appeal regardless of the evidence of their guilt.

My stand: As a sitting justice when the Estrada case was decided on June 29, 2001, I urged the use of “a single fixed camera under the control of the court… The audio-video output of the camera could be flashed on big, wide TV monitors or projection screens inside and outside the courtroom. This will also enable TV and radio crews outside the courtroom to beam the output to their respective stations for broadcasting to the public, without the ubiquitous and intimidating wiring, lights and media cameras inside the courthouse.”

This single fixed camera allows the public the same view as spectators inside the courtroom; they can see and hear the unfolding proceedings without bothering the judge, the lawyers, the witnesses and the parties. I think technology can widen the reach of the right to information without affecting the litigants’ rights.

I almost fell out of my chair when I read it. I read it again to make sure I had not made a mistake from reading a little too fast. That was P-Noy saying, “The same spirit hews closely to our position on the issue of right of reply. As the Bible says, the truth shall set you free. If two sides of a story are reported, if the details of every piece of news are accurate and the freedom of all Filipinos to form their own opinion is valued, then a journalist has nothing to worry about.”

That’s not unlike saying, which in fact the custodians of martial law did say, that if people were innocent then they had nothing to fear from the antidefamation laws, the rumor-mongering laws and the antisubversion laws. Indeed, if people were law-abiding and upright and civic-minded, then they had nothing to fear from martial law itself.

The “right” of reply is tyrannical. It has no business being in the Freedom of Information bill, which almost assures its doom. It’s like the “parity rights” the United States tacked on to the release of war-damage payments to us after the War. If we wanted the war-damage payments, we had to agree to “parity rights,” which gave Americans the same privileges as Filipinos to exploit the country. It’s the same thing here: If we want freedom of information, or the right to have access to official documents, particularly those of an incriminating nature, we have to agree to “right” of reply, which gives public officials time or space in media to answer perceived slights or wrongful reporting.

We fell prey to the first, we may not to the second.

The FOI should be passed as a matter of course, the way the war-damage payments should have been released as a matter of course. The “right” of reply, like parity rights, should not. The one is laudable, the other damnable.

It’s all very well that media should practice balance and objectivity and judiciousness. It’s all very well that media should strive for the truth, the whole truth and nothing but the truth. But who’s to say they have or haven’t? P-Noy himself hasn’t said anything, or done anything, that the Arroyo camp or the Left has found truthful. Everything he has said they’ve called self-serving, misleading and deceitful. Everything he has done they’ve called unfair, vengeful and oppressive. Depends on who’s making the determination.

Which is what makes the “right” of reply not unlike the censorship of martial law. Which makes the defense that if you’re truthful you’ve got nothing to fear from the “right” of reply not unlike the defense that if you’re innocent you’ve got nothing to fear from martial law’s antisubversion laws. It places the determination in the hands of public officials, the one group of people who are bound to see slight or slander in anything negative said about them.

Even more oppressively, it penalizes the presumably offending newspaper or radio or TV station with having to part with part of its airtime and print (or online) space to accommodate the public officials’ prickly defense of themselves. That is an egregious violation of the right—and it is a right, enshrined in the Constitution—of newspapers, radio and TV stations to determine, control and shape their editorial content. That is a transgression of the freedom of the press.

I grant that media can be, and have often been, abusive. I grant that media can be, and have often been unfair. “Right” of reply doesn’t make things better, it makes them worse. It solves nothing, it merely adds to the problem.

Public officials do not lack for means, opportunity and power to reply to reports they deem unfair, untruthful and abusive. For one, they can always air their side, their replies, retorts, and rambling grumblings, in subsequent stories about the issues, exposés and scandals. They are normally given the opportunity to. That is if they do not write letters to the editor, which are routinely printed and aired in the more reputable newspapers and TV stations.

They do not lack the means, opportunity and power to castigate the offending reporters, commentators and news broadcasters in their appearances as guest speakers in their anniversaries and other celebrations. P-Noy certainly does not.

Far more importantly, as Juan Ponce Enrile showed only recently, senators and congressmen do not lack for something far more powerful than reportage. That is the privilege speech. Enrile scoffed at the academicians and netizens for threatening to sue Tito Sotto for plagiarism, saying they forget, or do not know, that legislators may not be prosecuted for something they say during the privilege hour. They can malign you or insult you or damn you, but they may not be reproached or reprimanded or dragged to the courts. Certainly, you may not have any right or privilege to reply to them. The power is absolute.

Enrile justified this as necessary so the legislators could perform their task of exposing and correcting various ills in society. “That is why the Constitution grants Congress immunity for what they say inside the halls of Congress.”

So what in God’s name do they need “right” of reply for?

The press does not enjoy anything near the privilege speech. You can always reply to the press even within the press itself, without making it compulsory. Between senators and congressmen who are there to make laws, who harbor the vested interest of wanting to get reelected, and reporters and commentators who are there to inform, and who (except for the corrupt, who arguably fester in media’s pores) can look at things more impartially, who better to trust to expose and correct the various ills of society?

MANILA, Philippines—Malacañang on Wednesday denied President Aquino has been leading the charge to kill the freedom of information (FOI) bill, but made no commitment to rally its allies in Congress to approve the measure.

The President’s spokesperson, Secretary Edwin Lacierda, declared that Malacañang has not been delaying the passage of the controversial bill, but has deferred to the lawmakers in the House of Representatives to deliberate on it.

“We have submitted our FOI Bill and we have no hand in delaying [the passage of] the bill,’’ he said in a briefing.

Lacierda said that even proponents of the bill acknowledged that the administration has been transparent, and this should douse any speculation that the President “is the lead conspirator in the fight against the FOI bill.’’

When asked about perceptions that the President has been secretly undermining the passage of the bill, Lacierda said: “That is totally incorrect. We are a government that practices transparency and our actions speak for themselves.’’

Lacierda also denied reports that Executive Secretary Paquito Ochoa Jr. has been spearheading the lobby against the bill.

Deliberations on the bill by the House committee on public information have been stymied by technicalities. The committee chair, Eastern Samar Rep. Ben Evardone, on Tuesday adjourned the hearing before the consolidated version could be put to a vote, fearing this would overlap with the plenary session.

Advocates had been hoping that this could be put to a vote at the committee so it could be forwarded to the plenary for debate and approved on final reading.

The bill seeks to lift the secrecy surrounding the government transactions and documents, and allow for more transparency. The measure is aimed at rooting out corruption and promoting good governance.

Lacierda said Malacañang has submitted its version of the bill, and even Cabinet officials have appeared in the hearings as resource persons.

He observed that the deliberations were bogged down by Nueva Ecija Rep. Rodolfo Antonino’s claim that the consolidated bill ignored his version containing a right of reply provision, but factored in Malacañang’s version.

“We already submitted our FOI version. So we are happy with our FOI version—the Malacañang version,’’ he said. “As to the developments in the House, that’s another matter which we are not aware of.’’

On whether Malacañang was concerned that the bill had not moved past the committee level, Lacierda said it would remain hopeful “it would pass out of the committee.’’

But he indicated that the passage of the 2013 national budget and the sin tax bill would be the administration’s priorities for now.

“Well, there are a number of bills that have to be passed first admittedly, which we have not denied: the budget, the sin tax. The budget is important. The sin tax bill will address the funding gap. The RH is another and the FOI. But, again, all these we leave with the legislature,’’ he said.

Would the President make a stronger endorsement of the measure then?

Lacierda said: “We already made our position very clear. We have submitted our version. We have talked to the Right to Know, (Right Now) coalition.’’

MANILA, Philippines—Stung by criticism, the chairman of the House committee on public information on Friday pledged to finally put the Freedom of Information (FOI) bill to a vote when the hearing resumes on Nov. 27.

“I want this to get out of my committee so the plenary could now decide,” Rep. Ben Evardone on Friday told the Inquirer after FOI proponents accused him of mishandling the previous committee hearing last Tuesday.

In the next hearing, he said he would ask members to vote on contentious issues such as the proposal to include a “right of reply” provision. Also up for discussions are Malacañang’s proposed exceptions to the FOI bill, such as matters pertaining to national interest and security.

Evardone insisted that there was still time to pass the FOI bill despite the coming election season when attendance at the House of Representatives traditionally dwindles. All three plenary sessions this week were adjourned for lack of quorum.

Right of reply

“There is still time because we still have session until June after the May elections,” he said.

Tuesday’s committee hearing, only the second conducted on the FOI bill this year, ended unceremoniously supposedly for lack of time. Nueva Ecija Rep. Rodolfo Antonino spoke for most part of the hearing, arguing in favor of including a “right of reply” provision in the measure.

The “right of reply” provision will force private media to give politicians free space to reply to criticism against them, among other things.

Deputy Speaker Lorenzo Tañada III expressed “dismay” over the way Evardone, his fellow administration representatives, handled the hearing. Tañada warned that time was running out for the FOI bill, but his colleague urged him to be “optimistic.”

“Without curtailing the rights of the members of the committee and the authors, I hope we can expedite and shorten the debates,” Evardone said, denying accusations that he was conniving with Malacañang to kill the FOI bill.

“To be fair to Malacañang, I have not received any hint to either approve or reject the bill, so I will just go through the process,” he claimed.

MANILA, Philippines - Unbelievable and funny, but true. The House of Representatives is postponing the scheduled committee hearing on the Freedom of Information (FOI) bill because there is no available room. Literally.

"There is no room... The hearing is rescheduled to November 13. That's final," House committee on public information chairman Rep Ben Evardone told reporters on Tuesday, October 9.

It's supposed to finally happen next week, between October 15 to 17. Speaker Feliciano "Sonny" Belmonte Jr instructed Evardone to hold a hearing after the October 15 scheduled passage of the government's 2013 budget. (Congress will take another break from October 20 to November 4. Session will resume November 5.)

The FOI bill seeks to impose speedy procedures for obtaining documents of high public interest. It has been languishing in the House of Representatives. It remains in the first stage of the legislative process: pending approval on first reading before the House committee on public information.

This in spite of 117 members of the House of Representatives supporting the bill, based on a signature campaign launched by the bill's principal authors.

No coordination

Expecting it as a possible reason to further delay the hearing, FOI main author House Deputy Speaker Lorenzo "Erin" Tañada III said he had reserved a room for the committee hearing. It's a legitimate concern. Availability of rooms is a common problem for committee chairmen.

“I anticipated that reasoning and I reserved a room for a committee hearing that the committee on public information can use if they want to,” Taňada told reporters in a press conference on Tuesday.

“It just takes a little effort to look for a room and maybe I did that effort,” he added.

But Evardone said Tañada did not coordinate with the committee secretariat. "He did not coordinate with me. When I checked with my committee secretary, she told me we were 3rd on reserve. So I decided that we would just hold it on our regular slot," Evardone explained.

Running out of time

The FOI bill is running out of time. The next elections is 7 months away. Bills not approved by the current 15th Congress will go back to square one when new members assume their posts in June 2013.

To give the FOI bill a fighting chance, Tañada said it has to be passed on 3rd and final reading in December 2012 at the latest both by the Senate and the House of Representatives.

The previous 14th Congress was one step away from passing the FOI bill into law. The Senate ratified it but the House of Representatives under Speaker Prospero Nograles did not. - Rappler.com